Court strikes down county’s attempt to regulate farms

Even the mayor of Kauai County, Hawaii, former University of Hawaii football star Bernard Carvalho, thought Ordinance 960 was a bad idea.

The ordinance would have required farmers in the county to disclose confidential information about the types of pesticides they spray on their fields and their use of genetically modified organisms. Furthermore, farmers who violated the ordinance could be charged with a misdemeanor and fined as much as $25,000 per day, per violation.

The ordinance’s paperwork and notification requirements were not only heavy-handed and onerous, but demonstrated a considerable lack of understanding about existing label requirements under state and federal laws for the safe and effective use of modern crop protection products.

Kauai Mayor Carvalho vetoed the bill on the advice of his legal counsel, but the Kauai County Council passed it anyway. A number of agribusinesses subsequently filed a lawsuit challenging the ordinance.

Last month, U.S. Magistrate Judge Barry Kurren ruled that Kauai Ordinance 960 is in fact preempted by Hawaii state law, and is invalid. The ordinance was to have gone into effect on Aug. 16, 2014.

According to a statement by CropLife America, the national trade association for the crop protection industry, Ordinance 960 “was a misguided attempt to regulate five specific growers’ use of pesticides and biotechnology through a county-level ordinance, despite state law established to regulate these modern agricultural tools. Ordinance 960’s requirements placed an undue financial burden on the targeted growers and required disclosure of confidential business information that is protected by Hawaii and federal law.

“Such public disclosure would have exposed these growers to potential acts of vandalism, trade secret theft and harassment. U.S. Magistrate Judge Kurren rightly recognized the role that the Hawaii Pesticide Law plays in regulating pesticides, and that state pesticide law preempts the county-specific Ordinance 960.” To see a video interview on Ordinance 960, go to http://bit.ly/1p8Uow6.

Supporters of the ordinance claimed that pesticides were being applied too close to public buildings, homes and schools and that genetically modified organisms threatened to spread through the ecosystem. However, nowhere in the language of the ordinance was a specific example of a crop production product that had actually harmed a person or a non-GMO crop in Kauai County. Yet the stated purpose of the ordinance was “to protect the public from negative impacts” of these products.

Paul Achitoff, of Earthjustice, and a supporter of the ordinance apparently isn’t giving up. “This is the beginning. This is round one and there are a number of rounds to go.”